A U.S. District Judge has ruled that the tribal Coeur d’Alene Casino in Idaho may not offer poker, saying that state law does not allow it, despite the tribe’s claims to the contrary. He ordered the tribe to stop offering the game until a lawsuit with the state is resolved.
The judge granted the state government an injunction to close the poker rooms that the tribe has operated in its Worley casino for four months. He noted that the state’s constitution only allows slots, off-track betting and bingo. Judge B. Lynn Winmill wrote, “It bears repeating that Idaho’s constitution plainly prohibits all forms of gambling other than the three listed exceptions.”
Addressing the tribe’s claim that poker is a game of skill, not of chance, the judge wrote: “When a poker player is dealt a hand, chance determines how good or bad that hand will be. There is no skill involved in that part of the game—ever.”
The tribe says it plans to appeal the ruling to the 9th Circuit Court of Appeals. Tribal Chairman Chief Allan issued a statement that said, “Poker is so widely played across the state by so many different people and organizations that it sounds ridiculous to say that everyone playing poker in the state of Idaho is breaking the law, but that is what this decision says.” The tribe has operated a casino for 20 years.
The judge initially urged the state and tribe to go to arbitration over the issue of whether the tribe could offer poker. The tribe initially agreed and then changed its mind and chose to litigate, although the tribe emphasizes that its state tribal gaming compact stipulates that the “aggrieved party,” i.e. the state, would be the one to initiate arbitration.
The tribe argues that Texas Hold ‘em is not a game of chance and not poker, and therefore does not violate the ban against gambling.
Idaho Governor C.L. “Butch” Otter referenced that argument when he praised the court for its action: “And no matter how much the tribe insists otherwise, Texas Hold ‘em is poker.”
In its court documents the tribe stated, “As the statute provides, even if the game of poker is prohibited, that prohibition does not apply if the game can be shown to be a ‘contest of skill.’”
The judge held that poker is gambling because of the element of chance in the outcome, despite the tribe’s argument that it is actually a game of skill. Judge Winmill noted that the state’s definition of gambling, “means to risk money ‘in whole or in part . . . upon chance . . .’ Idaho Code § 18 – 3801. There is no dispute that in a game (or a series of games) of Texas Hold ‘em, players risk money at least partly upon chance. So even if the statute did not expressly refer to ‘poker,’ Texas Hold ’em would fit the definition of gambling. But should there be any doubt on this point, the legislature expressly listed ‘poker’ as a form of gambling.”
Courts across the nation have addressed the issue of whether poker is gambling or a game of skill and have come to different conclusions. Several years ago a court in Virginia ruled that poker was illegal gambling because state law defined gambling as wagering something of value on something where the ultimate outcome partially depended upon chance.
In stating that it plans to appeal the ruling, the tribe’s attorney Eric Van Orden, interviewed by the Spokesman-Review stated, “We still believe that we have valid legal arguments under federal law for offering poker at our casino and the court’s decision did not fully consider some of those arguments.”
The judge’s decision may have an impact on plans by California’s Santa Ysabel tribe to launch an online poker site under its rights to offer Class II gaming. California does consider poker to be Class II gaming, while Idaho does not. Despite this difference some observers say that the Idaho ruling could be used by California to seek an injunction should the Santa Ysabel tribe begin operating an online casino.
Many facets of online gaming have yet to be addressed by the courts, leaving them open to interpretation depending upon the jurisdiction. This is complicated by the fact that most states do not have laws addressing online gambling and so the courts must fall back on existing laws written before there was online gambling.
A key legal issue to be determined is whether the act of “gambling” happens at the location where the Website originates or at the location where the customer is. If the latter, then the question of Class II or Class III is irrelevant.
